United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NEITHER PRESENT NOR REPRESENTED.


 


JUDGE COLLINS :

1. This is an appeal against the decision of an Employment Tribunal sitting at Leeds whose extended reasons were promulgated on 17 November 1999. They dismissed the appellant's claim that there had been unlawful deductions from his wages and also dismissed his claim that he was entitled to particulars of his employment under the Employment Rights Act 1996.
2. The appellant had been between January 1996 and 23 October 1998 a full time working director at West Yorkshire Engineers; on 23 October 1998 he entered into a consultancy agreement with West Yorkshire Engineers. In December 1998 after West Yorkshire Engineers had gone into receivership, the receivers sold the business to the present respondents, Lattimer Engineering Ltd. The appellant's case was that his consultancy agreement was a contract of employment, the burden of which passed to Lattimer pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 1981.
3. The Tribunal conducted a familiar exercise of examining each of the factors which pointed in favour of a contract of employment and each of the factors favouring self employment in accordance with the judgment of Mummery J. in Hall v Lorimer 1994 IRLR 171. Balancing all the factors, in particular that the appellant had taken legal advice, they took the view that on the balance of probabilities he was not an employee.
4. The appellant's solicitors have not attended today but have submitted a skeleton argument containing their submissions. In so far as the skeleton argument submits that the nature of a contract is determined at the time when it was made and is not varied there after unless the facts give rise to an inference of a legal variation, the skeleton argument is unexceptionable. However it was legitimate in our judgment for the Tribunal to look at the way in which the contract was operated in case that threw any light on the question of the nature of the contract. A contract cannot be divorced from the factual circumstances in which it is made and in our judgment what the tribunal did was to balance all the evidence which it had and come to a decision on the facts of the case.
5. It would be inappropriate for us to go behind that balancing exercise unless the Tribunal wrongly took account of some factor which materially influenced their decision, wrongly omitted to take account of a material factor, or came to a decision which was plainly wrong. Although we might express some reservation about the fact that the tribunal paid attention to the fact that the appellant had only worked for four days altogether for West Yorkshire Engineers after the signing of the consultancy agreement, and the fact of the appellant working elsewhere, it does not seem to us that those factors were so important as to outweigh the other factors to which the tribunal gave attention. The Tribunal was entitled in our judgment to come to the conclusion that they did and in those circumstances the appeal will be dismissed as disclosing no reasonably arguable point of law.